Pakistani court says website blocking violates constitution

When CPJ covered the Pakistani government's attempt
to build a massive censorship system for the country's Internet in
February, we noted a key problem with such huge blocking systems: they are, at
heart, democratically unaccountable.

In the fallout from the proposal, Pakistan's High Court of
Sindh at Karachi has come to the same conclusion. This week, a group of six
Pakistani citizens, including journalist Sana
Saleem, petitioned the court to put a stay on the Pakistan
Telecommunications Authority (PTA)'s site-blocking. In the court's decision,
it stated that any such blocking was in violation of Pakistan's constitutional
protections for due process and free expression.

The court ordered the PTA to cease blocking any website
other than in accordance with the PTA Act of
1996. This law, which defines how the regulatory body exercises its power
over Pakistan's communications networks, requires, among other restrictions,
that the regulator acts "in an open, equitable, non-discriminatory,
consistent, and transparent manner," and that "the persons affected
by its decisions or determinations are given a due notice thereof and provided
with an opportunity of being heard."

The result of the order should be that the PTA will not be
able to block a site without first informing the site administrator of its
intention, and giving them the opportunity to be heard.

It almost certainly scuttles any PTA plans for building a
million-site blacklist. The regulator is now limited not by its censorship
equipment, but by these requirements to be transparent and responsive to those
it seeks to block. Hopefully, it will also put an end to the arbitrary and
secretive censorship of online journalism sites in the country. At the very
least, news sites which have faced such censorship
in the past, such as The Baloch Hal, will have to be
given reasons for any blocking, and a chance to overturn them in the courts.

When I spoke to Saleem after the ruling, she was keen to put
the decision in perspective. While it stops what she describes as the PTA's
"ad-hoc blocking," she admitted it leaves the possibility that the
PTA would devise a constitutionally-compliant process for blocking sites.
Pakistan's extensive blasphemy law and national security provisions mean that
if the PTA does seek legal authority for its filtering, it may succeed.

An unanswered question is how the PTA had wielded its
censorship power unsupervised for so long. Saleem said that her organization,
Bolo Bhi, was repeatedly told by politicians and civil servants that the proposed
filtering project was the PTA's initiative, not theirs. That's why the
activists shifted from political lobbying to directly challenging the PTA's
authority in the courts. But if the PTA was pursuing its own censorship agenda,
who was deciding which sites to censor? And when news, such as Rolling Stone's reporting on what it
called Pakistan's "insane military spending," was affected, who was
telling the PTA to black out those addresses?

For now, though, the petitioners' aims have been met.
"We wanted the PTA to act within the constitution, and within the
law," said Saleem. "But this isn't the end of our campaign for a free
Internet in Pakistan. It's just the beginning."

San Francisco-based CPJ Internet Advocacy Coordinator Danny O’Brien has worked globally as a journalist and activist covering technology and digital rights. Follow him on Twitter @danny_at_cpj.